Workplace Relations Commission (WRC) - RECENT Decisions & judgements

Decision UpheldRecommended Award of €4,500 to Social Care Worker as contribution for Loss of Earnings for Sick Leave during InvestigationCase Number – ADJ – 00001614

The Complainant worked as a Social Care worker in a residential centre which caters for young people who present with significant challenges and needs. Two allegations were made by young persons (YP1 and YP2) against the Social Care Worker. YP1 withdrew the allegation, re-instated it, and withdrew it again. Following receipt of the first complaint from YP1, a risk assessment was carried out and protective measures were put in place to ensure that the Complainant was not alone in the company of the YP1.

In May 2015 the mother of YP2 reported that her son had made an allegation against the Complainant. The following day the Complainant failed to report for duty and subsequently forwarded a GP certificate which certified her unfit for work due to “work related stress”. The Complainant remained out of work on certified sick leave until October 2015. In June, the Social Worker Team Leader verbally advised that there was no child protection concern and that he would issue his report. Management met with the Complainant in late July and gave her a copy of the draft report and a copy of management’s response.

As a result of her sick leave absence, the Complainant alleged she lost income in the order of €9,685 and her sick leave record had been affected. The Complainant argued that the Organisation’s Trust in Care policy should have been implemented, whereby a staff member could be placed on Administrative or Protective leave pending the outcome of the investigation. Given the process was not fully concluded until October 2015, the Complainant argued she should be re-imbursed for earnings lost and her sick leave record should be cleared.The Respondent argued that the Complainants contention that she “was absent from work during the investigation and my sick pay was exhausted” was factually incorrect, as she was absent from work on the basis that she submitted a medical certificate which certified her medically unfit due to work related stress. The Respondent further argued that the requirement to place the Complainant on administrative/protective leave was not applicable, as protective measures were put in place to ensure the Complainant would not be working on her own with the service users concerned.

In determination of its decision, the Adjudication Officer, referred to the fact that the Respondent had ordered the Complainant to be “taken off the floor” on being informed of the allegation, but the Complainant had already “jumped the gun” and had commenced sick leave. However, the Adjudication Officer was of the view that some account should be taken by management of the impact of their actions on the Complainant. Given this, the Adjudication Officer recommended, that in order to conclude this dispute, the Complainant’s sick leave record be cleared of the related absence and that a compensatory lump sum of €4,500 be given to the Complainant as a contribution towards her earnings loss as a once off.

Based on the WRC case and decision summary available, it is not clear as to whether the Complainant was not paid during her period of sick leave absence or exhausted her sick pay entitlement during her absence. As referred to by the Adjudicator however, the fact that the Complainant “jumped the gun” and went out on sick leave, prior to being advised of any actions to be taken by her Employer given the allegations did not help her cause.

The decision to suspend an Employee may not always be necessary depending on the circumstances. An example of a situation which may result in a paid suspension may include any act or conduct which could reasonably result in the termination of the Employee’s employment. Should an Employer decide to use paid suspension pending an investigation it should ideally be for a limited time period only. Prolonged suspension may be seen to be unfair on an Employee. Suspension is not an action that should be taken lightly and should only be used where there is strong evidence against an Employee, where the Employee’s response to questioning is unsatisfactory or where it is necessary to hold a full and proper investigation in order to establish the facts of an alleged incident or issue.

The Complainant was employed as a Health Care Assistant and brought a claim against her Employer to appeal a Stage 3 formal Written Warning issued by her Employer and tor reduce the warning to a Stage 1 Warning, which is a Verbal Warning or remove it all together.

In July 2015 following a shift changeover a colleague of the Complainant filled out a medication Error Discovery Report, which stated that a blister pack of medication was found on the patient’s locker. Upon her return to work, the Complainant was called to the CEO office and the error report was discussed. She replied that it was “just a mistake” and “not deliberate”, others make mistakes as well. She was reminded of previous errors and conversations that they had with her. She was placed on paid suspension pending the outcome of an investigation into the error report. The suspension was confirmed in writing.

The Complainant was subsequently called to a disciplinary hearing. All relevant documents were attached including the company’s Medication Management Policy and the Disciplinary Procedures Policy. The Complainant was represented by SIPTU Official. Following on from this meeting she was written to advise that further investigation was required. The outcome was that she was issued with a Written Warning in September 2015 to last on her file for 12 months. She was given the righto appeal. An external HR Consultant was appointed to hear the appeal in October 2015. She was represented by her SIPTU Official. The appeal outcome was issued on 4th December 2015 upholding the sanction. It was found “on the balance of probability” that the blister pack was found on the patient’s locker.

The Respondent carried out a very thorough investigation into this allegation. Witnesses were interviewed and attendance logs were checked. They are satisfied that there was nobody else on duty at the time in question. They are satisfied that she accepted that mistakes occur. They accept that she retracted this but later said “these things happen” which is an identical statement to “it was a mistake”. They are satisfied that the written warning was warranted. The appeal of the sanction was upheld by an independent external person. They have applied fair procedure to this matter and request that the written warning is upheld.

In determination of its findings, the Adjudication Officer referred to the fact that it was not their responsibility to re-investigate the whole matter but to determine whether the allegation was thoroughly investigated and that fair procedures and natural justice were applied, that the Complainant was given the right to properly defend herself and given the right of appeal.

In find that the issuing of the written warning was reasonable and warranted, the Adjudicator noted amongst other things that:

the Employer carried out a thorough investigation and arrived at a conclusion that the Complainant had left the blister pack on a patient’s locker

the Complainant had been spoken to on other occasions about errors in performance

the Complainant was offered the right of appeal, which was carried out by an independent third party

the Employer applied fair procedure and natural justice throughout this matter

the Complainant allegedly said “it was just a mistake” and “not deliberate”. She later denied making that statement and said “these things happen”. Either way the Adjudicator found that to be an admission.

S.I. No. 146 of 2000: Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 set out the principles which must be adhered to in any disciplinary situation. It sets out the rights of an Employee which must be upheld throughout the disciplinary procedure. A breach of the Code of Practice may lead to any disciplinary action being deemed to be procedurally unfair.

Generally, steps in the procedure should be progressive. However it is recognised in certain situations a concern, allegation or issue may need to be escalated to later stages of the procedure without recourse to the earlier stages of the procedure. In this instance, the Adjudicator was satisfied that given the facts, and procedural steps followed by the Employer, including independent and impartial HR Consultant, a disciplinary sanction of a Stage 3 formal Written Warning was appropriate.

Note on WRC:

The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.

The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).

In addition to this the Labour Court has been reconfigured in order to hear appeals.

​The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.

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